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Trial pool photo
The Worthington family files out of the courtroom on Friday as murder defendant Christopher McCowen (lower right) looks on. |
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McCowen murder trial, day 13
By Michael Iacuessa
Banner Correspondent
Christopher McCowen told a psychologist he had consensual sex with Christa Worthington on Jan. 3, 2002, the day before he is alleged to have murdered her.
However, after a lengthy debate that has raged behind the scenes since the start of the trial, Judge Gary Nickerson ruled Friday the jury would not hear the statement.
Nickerson said Dr. Eric Brown's testimony on the matter would amount to hearsay. He left the onus on defense attorney Robert George to call McCowen to the stand if he wants the statement allowed.
"Quite frankly you're trying to get information through the back door," Nickerson told George.
George is not going to call McCowen to the stand. Among the many reasons is that McCowen's past criminal record and restraining orders would become fair game for the prosecution. Those, thus far, have not been admissible either.
McCowen's comment to Brown came during discussion of drawings McCowen made of Worthington's home when he was interrogated by the police. Since McCowen's statement to police was never recorded or signed, the drawings are the only written evidence, devoid of police interpretation, in the statement.
Welsh took advantage of Nickerson's ruling by continuing to demonstrate to the jury that McCowen's story to police changed when they showed him a report matching his DNA to samples taken from Worthington's body.
George had argued McCowen's resulting statement "it could have been me" had a different connotation if one considered the possibility he was referring to having had sex with her rather than murdering her.
Brown, without being able to go into the reason why in front of the jury, testified he believed McCowen did not realize the significance of the document. According to Brown's tests, McCowen has a verbal IQ of 78, just nine points higher than a person considered to be mentally retarded.
"I don't think he understood what his exposure was, what his vulnerability was," said Brown.
Brown was allowed to repeat that McCowen informed him he took eight Percocets the day he was arrested. McCowen's mental state during the interrogation has been an issue of contention for the defense.
Brown said McCowen scored poorly on several IQ tests. He said the sun rose in the south, that Roosevelt was president during the Civil War and that Brazil was a country in Europe.
When asked how fog and steam were alike, he answered "they are participating." Brown believed McCowen meant precipitation.
The statements coincide with one made during the police interrogation when McCowen described his sex with Worthington as "masonry" style.
On cross-examination, Welsh suggested McCowen tried to score poorly to benefit himself. Welsh pointed out that McCowen was intelligent enough to hold a job, earn a paycheck and even deceive the many girlfriends he juggled.
Brown indicated he was aware of the concept of "faking bad" but did not believe McCowen did that during his tests. He recounted McCowen, now 34, suffered from epilepsy until a teenager possibly as a result of being hit in the head by an iron at four months of age. He also dropped out of high school in 11th grade and his mother was mentally retarded.
"These are objective and external factors that, in my opinion, tend to corroborate the finding in the testing," said Brown.
Brown's analysis was often overly-academic, however, and the jury seemed fatigued at times, especially as both attorneys tried to dance around the admissible areas resulting in vague questions and answers.
Dr. Richard Ofshe, who followed Brown, also proved academic and a tad long-winded. Ofshe, a Berkeley professor, is an expert on false confessions and police interrogation tactics. By Nickerson's own account, he "is probably the authority on the subject in North America."
Ofshe's testimony was just beginning when court adjourned Friday. He did state the importance of having a police interrogation taped as otherwise it was hard to determine how police tactics might have resulted in answers given.
According to George, Ofshe is the defense's last witness. Closing arguments will follow on Monday.
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Nov 2nd, 2006